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Common Law Tort of Negligence as a Tool for Deconstructing Positive Obligations under the European Convention on Human Rights

Stoyanova, Vladislava LU (2019) In The International Journal of Human Rights
Abstract
This article examines how the common law tort of negligence as developed in the United Kingdom can provide a helpful guidance for deconstructing and elucidating some of the disparate analytical issues that are subsumed under the umbrella of positive obligations under the European Convention on Human Rights (ECHR). Both frameworks, common law and ECHR, aim to delimit the circumstances where responsibility for omissions can be found and have similar conceptual basis of protection in that they protect fundamental interests. However, in the context of common law certain analytical elements have been more thoroughly considered and more clearly articulated. These elements are: the distinction between a duty and a breach of duty; the level of... (More)
This article examines how the common law tort of negligence as developed in the United Kingdom can provide a helpful guidance for deconstructing and elucidating some of the disparate analytical issues that are subsumed under the umbrella of positive obligations under the European Convention on Human Rights (ECHR). Both frameworks, common law and ECHR, aim to delimit the circumstances where responsibility for omissions can be found and have similar conceptual basis of protection in that they protect fundamental interests. However, in the context of common law certain analytical elements have been more thoroughly considered and more clearly articulated. These elements are: the distinction between a duty and a breach of duty; the level of foreseeability of harm; the proximity between the state and the person who has suffered harm because of an alleged omission; the reasonableness of imposing a duty; and the causation between the harm and the alleged omission. Two main arguments emerge from the juxtaposition of the ECHR analysis against the common law. First, by failing to explicitly articulate and distinguish certain analytical elements, the ECHR positive obligation judgments offer little general guidance as to the limits of responsibility in a more principled fashion. Second, the analytical inquiry applied when adjudicating positive obligations is in tension with the idea of the correlativity between rights and obligations. (Less)
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author
organization
publishing date
type
Contribution to journal
publication status
epub
subject
keywords
Human rights, Negligence, ECHR, Common law, Positive obligations, Mänskliga rättigheter
in
The International Journal of Human Rights
external identifiers
  • scopus:85074866723
DOI
10.1080/13642987.2019.1663342
project
Positive Obligations under the European Convention on Human Rights: More Predictability through Better Legal Reasoning
language
English
LU publication?
yes
id
b6649da3-7026-4ca9-a7f9-bec6b6dec75b
date added to LUP
2019-09-02 15:54:15
date last changed
2019-12-04 07:23:34
@article{b6649da3-7026-4ca9-a7f9-bec6b6dec75b,
  abstract     = {This article examines how the common law tort of negligence as developed in the United Kingdom can provide a helpful guidance for deconstructing and elucidating some of the disparate analytical issues that are subsumed under the umbrella of positive obligations under the European Convention on Human Rights (ECHR). Both frameworks, common law and ECHR, aim to delimit the circumstances where responsibility for omissions can be found and have similar conceptual basis of protection in that they protect fundamental interests. However, in the context of common law certain analytical elements have been more thoroughly considered and more clearly articulated. These elements are: the distinction between a duty and a breach of duty; the level of foreseeability of harm; the proximity between the state and the person who has suffered harm because of an alleged omission; the reasonableness of imposing a duty; and the causation between the harm and the alleged omission. Two main arguments emerge from the juxtaposition of the ECHR analysis against the common law. First, by failing to explicitly articulate and distinguish certain analytical elements, the ECHR positive obligation judgments offer little general guidance as to the limits of responsibility in a more principled fashion. Second, the analytical inquiry applied when adjudicating positive obligations is in tension with the idea of the correlativity between rights and obligations. },
  author       = {Stoyanova, Vladislava},
  language     = {eng},
  month        = {11},
  series       = {The International Journal of Human Rights},
  title        = {Common Law Tort of Negligence as a Tool for Deconstructing Positive Obligations under the European Convention on Human Rights},
  url          = {http://dx.doi.org/10.1080/13642987.2019.1663342},
  doi          = {10.1080/13642987.2019.1663342},
  year         = {2019},
}